Is Drug Residue Sufficient for Police to Forfeit Your Property in Florida?

Florida, like many states and the federal government, has some draconian asset forfeiture laws. For some reason, the state’s practice of forfeiting property from suspects based on very little evidence does not get much coverage, but taking property from people suspected of committing crimes is a favorite practice of police all over Florida.

As you likely know, when the state accuses someone of a crime, that person is innocent until proven guilty, and the state has the burden of proving guilt beyond any reasonable doubt. The rules are quite different in forfeiture cases. In asset forfeiture cases, the police can take a person’s property based on mere suspicion of criminal activity, and the state gets to keep that property while forcing the claimant to jump through a variety of hoops to try to get the property back. While the state has to prove some connection between the property and criminal activity, as a practical matter the claimant generally has to prove there is no connection between the property and any criminal activity. In some cases, the state can forfeit a person’s property even where the state acknowledges it does not have sufficient evidence to charge anyone with a crime.

In theory, at least, if the state wants to forfeit a person’s property, the state generally has to establish that the property represents proceeds from certain illegal activity (i.e. drug sales proceeds) or the property was used to facilitate certain criminal activity. A recent case south of Jacksonville, Florida shows just how little the state needs to do to proceed with a forfeiture of a person’s vehicle. In this case, the police were executing a search warrant and found a pipe with Methamphetamine residue inside a nice vehicle. Often, the standard for whether the police decide to proceed with asset forfeiture is how much they like the property and whether it is paid off. New vehicles that are paid off are good forfeiture targets. Older vehicles or vehicles with large loan payments are not. In any case, this was a nice vehicle that contained a small pipe with a small amount of Methamphetamine residue in it. The police seized the vehicle for forfeiture.

The owner of the vehicle made a claim for the vehicle arguing that it was not used to facilitate any felony drug crime and it was not purchased with the proceeds from any drug crime. The criminal defense lawyer tried to get the forfeiture case dismissed arguing that drug residue was not sufficient to forfeit valuable property like a new vehicle.

The judge allowed the forfeiture case to go forward. Methamphetamine was found in the vehicle, and possession of Methamphetamine is a felony in Florida so there was sufficient evidence to proceed with the forfeiture of the vehicle if the state can show the vehicle was used to facilitate the possession charge. There are other cases in Florida where drug residue was sufficient to forfeit property.

The Florida forfeiture law does account for the Eighth Amendment, which provides that excessive fines are unconstitutional. Florida courts interpret this to mean that the judge should look at whether it is excessive to forfeit property based on the value of the property and the relative severity (or lack thereof) of the underlying crime. In other words, it may be excessive if the state forfeits highly valuable property based on minor criminal activity. Therefore, even if the state can prove that the vehicle was used to facilitate a felony possession of Methamphetamine crime, there may be a way to attack the forfeiture as excessive pursuant to the Eighth Amendment. Not many cases are won by defendants and claimants based on the Eighth Amendment, but asset forfeiture is one area where a claimant has a decent chance.

The court ruling in this case determined that an asset forfeiture of a vehicle could go forward based on drug residue. Whether the state can ultimately prevail and whether this is an Eighth Amendment violation remains to be seen.